Ten Practical Tips in E-Discovery Advocacy

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1 Ten Practical Tips in E-Discovery Advocacy Introduction Electronic discovery involves a variety of challenges, some of which can be contentious. Disagreements can arise regarding issues such as preservation, proportionality, privilege, predictive coding, social media and BYOD, and potential sanctions, among others. The Huron Legal Institute recently hosted the E-Discovery Advocacy Institute, featuring seven distinguished members of the federal judiciary, as well as a number of accomplished practitioners and in-house counsel. Using the format of mock discovery hearings on hypothetical fact scenarios followed by analysis and discussion, the program examined these issues. The discussion yielded a variety of practical tips for e-discovery advocacy, although many of these strategies may be useful in other contexts as well. 1. Cooperate with opposing counsel Cooperation was probably the most common theme advocated by the members of the judiciary who participated in the institute. A number of judges have signed on to the Sedona Conference Cooperation Proclamation, and the first question many judges ask in a discovery hearing is the degree to which counsel have discussed the issue and attempted to work it out among themselves. One judge suggested that when parties come before the court with no real advance discussion, they put the court in an unfair position, since the court must then ask the questions needed to rule appropriately. Most of the judges indicated that parties should at least attempt to narrow the issues before the court rather than presenting generalized they aren t cooperating in discovery complaints. True cooperation among parties will minimize the need for court intervention regarding discovery issues, so that the real focus can be on the merits of the underlying case. If there is a disagreement about issues but the parties demonstrate their efforts to cooperate, the court can rule more easily and more effectively, and the court may view parties perceived as reasonable in a more credible light. 2. Involve the court early It is often advantageous to communicate with the court about potential issues as early as possible. Fed. R. Civ. P. 1 requires courts to construe and administer the rules to secure the just, speedy, and inexpensive determination of matters, and Rules 15, 16, and 26 address the court s pretrial management responsibility. Judges take these responsibilities seriously. Early court involvement can help control the cost of discovery and help parties avoid costly mistakes, through guidance and implicit or express approval of protocols, or decisions regarding curative measures for problems such as spoliation, among other things. In the worst case scenario, early court involvement can lay the groundwork for later sanctions, if necessary. In fact, in the proposed amendment to Rule 37, the factors for courts to consider in assessing a party s conduct include whether the party timely sought the court s guidance on any unresolved disputes about preserving discoverable information. 1 Courts are 1 Of course, the proposed amendments have no precedential effect. They are still open for comment and there is no guarantee they will be adopted as written. The earliest they will be adopted is December See

2 frustrated when motions are made after significant costs have been incurred or damage has been done, when earlier intervention could have minimized the problem. 3. Understand the tools available to conduct e-discovery There are a range of technologies available to assist with e-discovery, and those whose practice includes e-discovery need to understand their uses. The comments to ABA Model Rule of Professional Responsibility 1.1 regarding competence were amended in 2012 to make it clear that lawyers should maintain knowledge of the benefits and risks associated with relevant technology. Understanding how and why these tools are best used not only facilitates making the most effective choice for a particular matter, but also makes it easier to explain to a judge that choice and the related methodology, if that becomes necessary. Tools are effective when used properly; for example, search terms need to be developed carefully and predictive coding algorithms need to be trained effectively to yield the most accurate results. As one judge indicated, the standard is not perfection, but rather reasonableness under the circumstances. 4. Offer solid support for your argument Courts need real information on which to base their rulings. In a variety of contexts, the judicial panelists indicated their desire for the factual basis underlying parties arguments. As one judge put it, he wants to be able to give a reasoned solution to the dispute rather than possibly split the baby. For example, an assertion regarding the burdensomeness of discovery should be backed up with specific information about the actual costs involved and supporting documentation showing the basis for those costs, such as invoices or vendor proposals. A judge might not understand, for example, why corporate data storage is so expensive, when he himself can buy an inexpensive drive with a lot of capacity. Parties should also be prepared to offer information as to whether there are less costly alternatives. 5. Give the court the benefit of expert guidance Among the types of tangible support for their arguments that parties should consider is the provision of expert guidance, if it will be helpful to the court. Many judges do not have extensive e-discovery experience, and even the most sophisticated do not understand all the technical details related to data storage and retrieval or the variety of technologies available to search, analyze, and review information. A subject matter expert can often help the court understand these issues in order to make an informed decision. Depending on the issue, that expert might be a member of the in-house IT department, a vendor, or an outside consultant. For example, an expert might be helpful in discussions of preservation or whether certain production would be burdensome. Similarly, if the adequacy of search or review technology is in question, an expert can help the court understand the technology and methodology. Even before issues are presented to the court, expert assistance such as internal IT personnel can be helpful during the meet and confer process. Some have debated whether a Daubert hearing is necessary in discussions of the appropriateness of using predictive coding, with the argument hinging on whether fact or opinion evidence is being offered. Regardless of that issue, as one judge pointed out, the real concern is that parties often need to convince the court regarding the reasonableness (or lack thereof) of what was done or is planned, in circumstances where that process may not be familiar to the court or widely accepted. When discussing with a court the reasonableness of unfamiliar technology or methodology, it is important to make sure the judge has the understanding needed to make a ruling. Further, a Magistrate Judge needs to be able to make the District Judge understand. An expert s input is therefore often appreciated by the court. 6. Argue proportionality, and be prepared to discuss damages and defenses Discovery should be proportional to the needs of the case. Under Rule 26(b)(2)(C)(iii), the court must limit discovery if the burden outweighs the benefit, given the needs of the case, amount in controversy, parties resources, importance of the issues at stake, and importance of the discovery in resolving the issues. Parties should therefore argue proportionality with respect to the scope of discovery (and, in fact, the proposed amendment to Rule 26 moves the proportionality test to the definition of scope). A more difficult argument to make is proportionality of preservation, since preservation is a common law duty. However, the guidelines in the proposed amendment to Rule 37 include proportionality of the preservation efforts to any anticipated or ongoing litigation among the factors to consider with respect to preservation and culpability. Since preservation is a common law duty, arguably judges do not need to rule on it it is up to the producing party to balance the cost of preservation 2 huronconsultinggroup.com/legal

3 Ten Practical Tips in E-Discovery Advocacy against the risk of possible spoliation sanctions, which can sometimes be a difficult decision if there is not yet a pending lawsuit or opposing counsel with whom to negotiate. According to the panel, in general, judges will err on the side of preserving to the extent there is some evidence of the need for the information. If the wrong decision is made on preservation proportionality, that material may be gone for good. Thus, it is preferable for the parties to reach agreement on the scope of preservation, if possible. Creative options such as sequenced discovery (and related preservation) or sampling should be considered when crafting these agreements. In arguing for proportionality in the context of either discovery or preservation, parties should be prepared to discuss the issues in the Rule 26 test. In particular, plaintiffs are likely to be asked their views on the amount of their likely recovery or, in certain cases such as civil rights claims, the importance of the issues at stake. Defendants may be asked about their theories of defense. For example, in a class action, whether the defendant plans to defend based on facts related to the named plaintiffs or on a broader basis should affect the scope of discovery and could also affect the number of custodians for whom information is preserved. 7. Minimize privilege disputes Privilege disputes primarily arise in two contexts: disputes over whether documents are, in fact, protected by privilege or the work product doctrine and disputes related to purported privilege waiver. Both of these issues are best addressed by action before a hearing is actually needed. When the existence of the privilege is disputed, privilege logs come into play, and a court may need to conduct an in camera review. The proliferation of data in today s world has resulted in commensurately large populations of documents withheld for privilege, which can be a nightmare for the reviewing court. Mechanically generated privilege logs often do not contain sufficient information for opposing parties (or the court) to determine the privileged nature of documents, and the volume of documents subject to potential in camera review can be dizzying. One way to minimize these issues might be to develop a privilege protocol that will limit the number of documents included in a privilege log or potentially subject to in camera review, ideally with agreement from the other side. The Facciola-Redgrave Protocol 2 offers some suggestions in this regard, such as categorizing potentially privileged information and determining the likely discoverability of those categories. Hopefully, the parties can agree that certain categories are most likely not discoverable and therefore don t need to be logged or produced for in camera review. The protocol might also include mechanisms for limiting the quantity of documents subject to review, such as de-duplicating, reaching agreement on the logging of threads (for example, last in time only), treatment of attachments, etc. Well-thought protocols help parties focus hearings on those documents whose privileged nature is truly disputed, and can reduce the number of documents the court might need to review in the event of such a dispute. The second issue that can arise is waiver of privilege. In the event of a challenge, Fed. R. Evid. 502(b) sets out the standard by which the court determines whether inadvertent production constitutes waiver. The test includes reasonable measures taken by the party, and some courts interpret that reasonableness as a very high standard. Parties can avoid the risks associated with a hearing on this issue if they enter into an agreement to the effect that inadvertently produced, privileged documents will be returned and the privilege will not be waived by that inadvertent production, commonly referred to as a claw back agreement. (Of course, the party may still have to argue whether the document is, in fact, privileged.) An agreement regarding privilege is effective as between the parties to the current litigation (502(e)), but parties can broaden the non-waiver to include all federal and state court proceedings simply by having the court enter an order incorporating the agreement (502(d), (e)). Several judges on the panel expressed their strong support for such agreements and orders, and at least one of them includes a claw back provision in his standard pretrial order. At least one court has imposed a claw back order over the objection of one of the parties. 3 A claw back agreement or order does not mean that a party must produce all documents without conducting a review: privileged documents are by definition outside the scope of discovery, so parties should be entitled to review them and assert privilege as appropriate. 8. Offer common sense solutions Parties often come to hearings and make all or nothing arguments. As one judge suggested, that can be a mistake since zero sum processes don t usually make sense. Rather, parties should go into 2 John M. Facciola & Jonathan M. Redgrave, Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework, 4 Fed. Cts. L. Rev. 19 (2009). 3 Rajala v. McGuire Woods, LLP, 2010 WL (D. Kan. July 22, 2010). 3 huronconsultinggroup.com/legal

4 hearings with an educational rather than an adversarial perspective, in order to educate judges regarding what makes sense. Most judges are interested in a common sense solution if one is offered. One example that can be helpful in a variety of scenarios is tiered or phased discovery. In a situation where a party is seeking relief to limit its preservation, for example, different degrees of preservation for different custodians might be a creative solution, or short term preservation until completion of the first wave of discovery, after which the parties can discuss whether ongoing preservation beyond that is required. Similarly, when there is a dispute regarding the burdensomeness of discovery, sequenced discovery can be helpful. Once the requesting party has examined what was produced in the first phase, the parties may agree on less future production than was originally contemplated (fewer custodians, unnecessary categories of documents, etc.). Common sense solutions can also be welcome in sanctions hearings, as discussed more fully below. Courts are generally inclined toward more reasonable sanctions than the most severe. When a party against whom sanctions are sought is potentially culpable, it can be advantageous to propose a livable solution, and a party seeking sanctions should consider, as a threshold, what it really needs to be made whole as opposed to the most punitive measures. 9. Suggest curative measures when spoliation is an issue When there has been spoliation of evidence, the injured party s first instinct is often to move for sanctions, which may sometimes be appropriate. However, as an alternative or at least as a fallback position, it can be a good idea to suggest curative measures. From the perspective of the party accused of destroying evidence, offering to take steps to remedy the situation as best possible makes good sense it demonstrates good faith and gives the court the option of a less severe penalty. Examples could include finding other sources for the lost information, even if those sources might not otherwise have been discoverable, using forensic experts to reconstruct data, extra depositions or other forms of discovery, and more. Because these measures can be costly, it is likely that the party in the wrong will be required to bear the expense. These measures should be requested as early in the case as possible. From the movant s perspective, if the respondent complies and adequate information becomes available, the case can proceed apace on the basis of the merits. If the respondent fails to comply or if the measures are inadequate, there is a stronger case for meaningful sanctions at trial, including adverse inference instructions to the jury. Courts often see spoliation sanctions requests after the discovery period is closed, at the point at which the ability to reopen the issue and level parties positions is limited. This puts the judges in a difficult situation. 10. Know the law in your jurisdiction It is important to know and understand the discovery laws in the jurisdiction in which the case is pending, in order to effectively argue and defend discovery motions. Not only are there differences among state courts (some have an independent tort of spoliation, for example), there are also differences among the federal circuits, ranging from nuances to variances that can have very different substantive effect. For example, the duty to preserve is a common law duty and there are nuances about when that duty arises. Under the current law, different circuits have different standards regarding the degree of culpability required for spoliation sanctions, ranging from negligence to willfulness and bad faith. The proposed amendment to Fed. R. Civ. P. 37 offers a uniform standard, but if adopted, it will only apply to federal proceedings. Even then, there will likely be questions about interpretation of the culpability standards and the question of who is required to prove prejudice, when the party seeking discovery doesn t know what they don t know. Understanding the case law in the relevant jurisdiction will help parties structure their arguments to address each aspect of the appropriate analysis (for example, whether there was spoliation, the party s efforts to preserve, whether curative options are available, the level of culpability, and the actual nature and degree of prejudice caused by the spoliation). These are just a few suggestions regarding advocacy in e-discovery matters. There are several common themes underlying these tactics: cooperation among parties, reasonableness of positions taken, and competence of counsel, in terms of knowledge of both the applicable law and the applicable technology. Of course, the best and most effective strategy is to educate clients regarding best practices and ensure that they have these in place, thus not only minimizing the likelihood of disputes arising, but also positioning counsel to make strong arguments in support of their clients positions. 4 huronconsultinggroup.com/legal

5 Panelists from the judiciary included: Hon. Robert B. Collings, Magistrate Judge, United States District Court for the District of Massachusetts; Hon. Joy Flowers Conti, District Judge, United States District Court for the Western District of Pennsylvania; Hon. Joseph A. Dickson, Magistrate Judge, United States District Court for the District of New Jersey; Hon. John M. Facciola, Magistrate Judge, United States District Court for the District of Columbia; Hon. Paul W. Grimm, District Judge, United States District Court for the District of Maryland; Hon. Andrew J. Peck, Magistrate Judge, United States District Court for the Southern District of New York; Hon. Craig B. Shaffer, Magistrate Judge, United States District Court for the District of Colorado Outside counsel and in-house panelists included: Steven C. Bennett, Jones Day; Susanna M. Buergel, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Joanne E. Caruso, Jacobs Engineering Group Inc.; David A. Chaumette, Chaumette, PLLC; Edward O. Gramling, Pfizer Inc.; Deborah Gross, Law Offices Bernard M. Gross P.C.; Maura R. Grossman, Wachtell, Lipton, Rosen & Katz; David J. Kessler, Norton Rose Fulbright; Gilbert S. Keteltas, Baker & Hostetler LLP; David J. Lender, Weil, Gotshal & Manges LLP; Wayne Matus, UBS AG; Farrah Pepper, General Electric Company; Paul Weiner, Littler Mendelson P.C. Moderators: James G. Mitchell and Carolyn Southerland, Huron Legal huronconsultinggroup.com/legal Huron Legal provides advisory and business services to assist law departments and law firms to enhance organizational effectiveness and reduce legal spending. Huron Legal advises on and implements strategy, organizational design and development, outside counsel management, operational efficiency, and discovery solutions, and provides services relating to the management of matters, contracts, documents, records, digital evidence and e-discovery Huron Consulting Group Inc. All Rights Reserved. Huron is a management consulting firm and not a CPA firm, and does not provide attest services, audits, or other engagements in accordance with standards established by the AICPA or auditing standards promulgated by the Public Company Accounting Oversight Board ( PCAOB ). Huron is not a law firm; it does not offer, and is not authorized to provide, legal advice or counseling in any jurisdiction. See Things Differently.

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